Responsa for Bava Batra 58:11
ורמי דרבא אדרבא ורמי דרב נחמן אדרב נחמן דההוא
in this house?' He replied, 'I bought it from you, and I have had the use of it for a period of <i>hazakah</i>.'<span class="x" onmousemove="('comment',' I.e., three years. And therefore it is mine, although I cannot produce any record of the purchase. ');"><sup>9</sup></span> To which the other replied, 'But I have been living in an inner room [and therefore did not protest].'<span class="x" onmousemove="('comment',' Because to a certain extent I had the use of your room, being able to pass in and out, and therefore it has not belonged to you for three years. ');"><sup>10</sup></span> The case was brought before R. Nahman, who said to the defendant: You must prove that you have had constant use of the house<span class="x" onmousemove="('comment',' Lit., 'prove your eating'. ');"><sup>11</sup></span> [for three years without the claimant]. Said Raba to him: Is this a right decision? Is not the onus probandi in money cases always on the claimant? A contradiction was pointed out between Raba's ruling here and his ruling in another place, and between R. Nahman's ruling here and his ruling in another place. For a certain man
Teshuvot Maharam
Q. A had lived undisturbed for more than three years in T when the community ordered him to leave the place because he had received no permission from it to establish a residence there. A claims that the settlement ban against new settlers had been waived for his benefit by all the members of the community who lived in T at the time. The latter deny A's claim.
A. The removal of the ban against settlement by waiver is accepted by the communities as legally binding, although, in talmudic law, rights in real property cannot be waived or relinquished unless the waiver be accompanied by a formal act of possession. But since the community denies A's claim, A must produce proof that the ban against settlement had been waived in his favor. A community is in complete possession of its rights and does not have to protest any encroachments on such rights. Therefore one can not claim usucapion as a factor in obtaining possession of community rights. This law is accepted throughout this Kingdom.
SOURCES: Pr. 46; L. 351; Mordecai Hagadol, p. 308a.
A. The removal of the ban against settlement by waiver is accepted by the communities as legally binding, although, in talmudic law, rights in real property cannot be waived or relinquished unless the waiver be accompanied by a formal act of possession. But since the community denies A's claim, A must produce proof that the ban against settlement had been waived in his favor. A community is in complete possession of its rights and does not have to protest any encroachments on such rights. Therefore one can not claim usucapion as a factor in obtaining possession of community rights. This law is accepted throughout this Kingdom.
SOURCES: Pr. 46; L. 351; Mordecai Hagadol, p. 308a.
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Teshuvot Maharam
a) Q. M(eir) settled in the town T and lived there for many years buying houses and planting vineyards and groves. While he was alive certain persons contested his right to settle in T, but R. Judah ha-Kohen confirmed M's settling-rights. Now (after M's death) some inhabitants of T seek to oust M's son-in-law claiming that M possessed no settling rights in T.
A. Since R. Judah, my teacher and relative, acting in his official capacity as judge, confirmed M's settling-rights, no one is permitted to contest these rights of M. For, R. Judah deserves complete reliance on, and respect for his decisions. Therefore, you ought to silence all contestants by decree.
b) You state in your letter that two years ago you inquired of me regarding R. Isaac son of Rehabiah whose settling right was contested by the leading inhabitants of the town and that at that time we (?) had confirmed R. Isaac's right on the following grounds: a) witnesses testified that his father dwelt in this town for a year or two without disturbance; b) after his father's death he dwelt here for three years without disturbance; and c) in such cases the court puts forth the claim (for the heir) that had the father been alive he would have claimed to have bought (or obtained) settling-rights from the other dwellers of the town (and would have needed no further evidence under the circumstances). I have heard my teacher R. Judah ha-Kohen decide cases of settling-rights-disputes on the grounds quoted above; but I do not believe that such decisions are correct. According to talmudic law, undisturbed possession is not a factor in disputes involving settling-rights. Persons dwelling on their property during its occupancy by another, do not have to protest such occupancy since they are always in possession of their property (B.B. 29b). Therefore, the failure of the inhabitants of the town to protest against R. Isaac's settling in their midst, is of no consequence, and the decision given above is, indeed, faulty. However, it is possible that my teacher (R. Judah) arrived at such decision by following not talmudic law but community practice. Many communities accept, as legal, methods of proving a person's settling-rights that have no basis in, and that are entirely unacceptable to, talmudic law. For, settling rights are governed by the customs and practices of each particular community. The customs of the various communities differ from one another and are not at all dependent on strict talmudic law. R. Judah, therefore, finding a parallel in talmudic law, wanted to institute the custom of accepting undisturbed possession as a method of proving a person's settling rights. This custom ought to be followed in the communities where R. Judah instituted it (in deference to this scholar), and is in itself worthy to be followed in other communities as well.
SOURCES: L. 213.
A. Since R. Judah, my teacher and relative, acting in his official capacity as judge, confirmed M's settling-rights, no one is permitted to contest these rights of M. For, R. Judah deserves complete reliance on, and respect for his decisions. Therefore, you ought to silence all contestants by decree.
b) You state in your letter that two years ago you inquired of me regarding R. Isaac son of Rehabiah whose settling right was contested by the leading inhabitants of the town and that at that time we (?) had confirmed R. Isaac's right on the following grounds: a) witnesses testified that his father dwelt in this town for a year or two without disturbance; b) after his father's death he dwelt here for three years without disturbance; and c) in such cases the court puts forth the claim (for the heir) that had the father been alive he would have claimed to have bought (or obtained) settling-rights from the other dwellers of the town (and would have needed no further evidence under the circumstances). I have heard my teacher R. Judah ha-Kohen decide cases of settling-rights-disputes on the grounds quoted above; but I do not believe that such decisions are correct. According to talmudic law, undisturbed possession is not a factor in disputes involving settling-rights. Persons dwelling on their property during its occupancy by another, do not have to protest such occupancy since they are always in possession of their property (B.B. 29b). Therefore, the failure of the inhabitants of the town to protest against R. Isaac's settling in their midst, is of no consequence, and the decision given above is, indeed, faulty. However, it is possible that my teacher (R. Judah) arrived at such decision by following not talmudic law but community practice. Many communities accept, as legal, methods of proving a person's settling-rights that have no basis in, and that are entirely unacceptable to, talmudic law. For, settling rights are governed by the customs and practices of each particular community. The customs of the various communities differ from one another and are not at all dependent on strict talmudic law. R. Judah, therefore, finding a parallel in talmudic law, wanted to institute the custom of accepting undisturbed possession as a method of proving a person's settling rights. This custom ought to be followed in the communities where R. Judah instituted it (in deference to this scholar), and is in itself worthy to be followed in other communities as well.
SOURCES: L. 213.
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Teshuvot Maharam
Q. A had lived undisturbed for more than three years in T when the community ordered him to leave the place because he had received no permission from it to establish a residence there. A claims that the settlement ban against new settlers had been waived for his benefit by all the members of the community who lived in T at the time. The latter deny A's claim.
A. The removal of the ban against settlement by waiver is accepted by the communities as legally binding, although, in talmudic law, rights in real property cannot be waived or relinquished unless the waiver be accompanied by a formal act of possession. But since the community denies A's claim, A must produce proof that the ban against settlement had been waived in his favor. A community is in complete possession of its rights and does not have to protest any encroachments on such rights. Therefore one can not claim usucapion as a factor in obtaining possession of community rights. This law is accepted throughout this Kingdom.
SOURCES: Pr. 46; L. 351; Mordecai Hagadol, p. 308a.
A. The removal of the ban against settlement by waiver is accepted by the communities as legally binding, although, in talmudic law, rights in real property cannot be waived or relinquished unless the waiver be accompanied by a formal act of possession. But since the community denies A's claim, A must produce proof that the ban against settlement had been waived in his favor. A community is in complete possession of its rights and does not have to protest any encroachments on such rights. Therefore one can not claim usucapion as a factor in obtaining possession of community rights. This law is accepted throughout this Kingdom.
SOURCES: Pr. 46; L. 351; Mordecai Hagadol, p. 308a.
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